IN THE CASE OF:	  

		BOARD DATE:  5 December 2013

		DOCKET NUMBER:  AR20130011880 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his date of rank (DOR) to major (MAJ) from 1 April 1995 to 30 June 2008 and removal of his non-selection for promotion to lieutenant colonel (LTC) from his records.

2.  The applicant states on 5 December 2006, the Board directed his consideration for promotion to MAJ by a special selection board (SSB) based on the 1994 criteria.  He was considered and selected for promotion.  He was promoted on 30 June 2008 in the U.S. Army Reserve (USAR).  However, his DOR is listed as 1 April 1995.  Due to the error in the DOR, he was considered for promotion to LTC by the 2012 and 2013 boards, but he was not selected for promotion.  He believes due to significantly less active assignments as a MAJ when compared to other officers in the primary zone, he was at a disadvantage.  With the correct DOR of 6 July 2008, his primary zone promotion consideration should be during Fiscal Year (FY) 2014.

3.  The applicant provides:

* Self-authored timelines/events
* Promotion memorandum, dated (issued) 30 June 2008
* Promotion Orders Number 310-004, dated 5 November 2008
* Amendment Orders Number 154-004
* Extract of Army Regulation 600-8-29 (Officer Promotions)
* Email exchange with officials of the U.S. Army Human Resources Command (HRC)
* Military Personnel (MILPER) Message Number 12-369, dated 20 November 2012
* MILPER Message Number 11-324, dated 20 October 2011
* Multiple DA Forms 1059 (Service School Academic Evaluation Report)
* Multiple DA Forms 67-9 (Officer Evaluation Report)
* Multiple DA Forms 638 (Recommendation for Award)
* Multiple award certificates and orders

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Kansas Army National Guard (KSARNG) and executed an oath of office on 13 July 1983.  He served in a variety of assignments and he was promoted to captain on 8 March 1985.  He was reappointed into the District of Columbia ARNG (DCARNG) on 15 September 1985.

2.  He entered active duty on 17 October 1988.  He was released from active duty for miscellaneous reasons (in lieu of unqualified resignation) on 30 September 1992 and he was transferred to the USAR Control Group (Individual Ready Reserve (IRR)).

3.  He was considered by the 1996 and 1997 Reserve Components Selection Boards (RCSB) for promotion to MAJ but he was not selected.  He was honorably discharged from the ARNG on 7 April 1997.

4.  Prior to his discharge, he enlisted in the Wisconsin ARNG (WIARNG) on 29 November 1996 to be effective 8 April 1997.  He served in a variety of assignments and he was honorably discharged on 30 September 2003.

5.  He enlisted in the USAR on 1 October 2003 and he served in military occupational specialty 91W (Health Care Specialist).

6.  On 12 April 2006, HRC-St. Louis published Orders C-04-610025 appointing him as a captain in the USAR with assignment to the USAR Control Group (Annual Training) effective 11 April 2006. 

7.  On 19 June 2006, he petitioned this Board for correction of his record to show he was promoted to MAJ.  On 30 November 2006, the Board granted him relief in that it ordered his records submitted to a duly-constituted SSB for promotion consideration to MAJ under the 1994 and 1995 criteria and if selected to promote him to the grade of MAJ, if otherwise qualified.

8.  He was considered for promotion to MAJ by the 2008 MAJ Army Promotion List (APL) under the 1994 criteria and he was selected for promotion.  The 2008 MAJ APL was approved on 30 May 2008.

9.  As a result of the SSB, on 30 June 2008, HRC-St. Louis issued the applicant a promotion memorandum promoting him to MAJ with an effective date and DOR of 1 April 1994.

10.  Additionally, as a result of the SSB, HRC-Alexandria published Orders Number 310-004, dated 5 November 2008, as amended by Orders Number
154-004, dated 3 June 2009, that changed his DOR to read "11 April 2006."

11.  He entered active duty on 6 July 2008 under the Call to Active Duty Program to fulfill active duty requirements in a voluntary indefinite status.  The orders contained a special instruction for the applicant that reads "Officer may be eligible for DOR re-computation.  Officer recalled to active duty must request a DOR determination through their servicing Personnel Service battalion (PSB) upon entry to active duty in accordance with Army Regulation 600-8-29 (Officer Promotions), section V, paragraph 1-36." 

12.  He appears to have been considered for promotion to LTC by the 2012 and 2013 promotion boards but he was not selected.

13.  In the processing of this case, on 5 August 2013, an advisory opinion was obtained from HRC-Fort Knox.  The advisory official stated:

	a.  The assertion that the applicant is being disadvantaged by retaining his original DOR to MAJ and his current non-select for promotion to LTC be removed is without merit and would violate Federal law.

	b.  Title 10, U.S. Code, section 533(f) specifically states: "A Reserve officer (other than a warrant officer) who receives an original appointment as an officer (other than as a warrant officer) in the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps shall - (1) in the case of an officer on the active duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank held by the officer on the active-duty list before the appointment; and (2) in the case of an officer not on the active duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank which the officer would have held had the officer been serving on the active-duty list on the date of the appointment as a regular officer."

	c.  While serving with the USAR, the applicant was promoted to MAJ, effective 1 April 1994.  Thereafter he served continuously on an active status in the rank of MAJ without any breaks in service from 10 May 2005 to 10 April 2008 and from 10 May 2008 until 5 July 2008.  Immediately following, on 6 July 2008, he was placed on the Army's Active Duty List (ADL).

	d.  His assertion that he was not selected due to having significantly less assignments as a MAJ when compared to other candidates serving in the ADL while competing in the primary zone is incorrect.  The exact reasons for his non-selection for promotion are unknown because statutory requirements set forth in Title 10, U.S. Code, section 618, prevent disclosure of board proceedings to anyone outside the promotion board in question.  The decision to recommend an officer for promotion is based upon the criteria established by the Secretary of the Army and the collective judgment of the respective board members as to the relative merit of an officer's overall record when compared to the records of other officers being considered.  It can only be concluded that the previous promotion boards determined that his overall record, when compared with the records of his contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

14.  On 8 August 2013, a copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

15.  On 19 November 2013, HRC officials reviewed his Army Reserve Personnel Command (ARPC) Form 349-E (Chronological Statement of Retirement Points) and discovered that there was an overlap in the Retirement Years Ending (RYE) 2005/2006 between his enlisted and commissioned officer service.  An HRC official corrected the discrepancy by separating the enlisted service from the commissioned officer service.

16.  On 2 December 2013, based on the corrections made to his ARPC Form 249-E, officials at HRC adjusted his DOR from 11 April 2006 to 27 July 2006. 

17.  Army Regulation 600-8-29 provides for commissioned and warrant officer promotions.  Paragraph 1-41a states OTRA (Other than Regular Army) commissioned officers in a grade above 2LT who were not given entry grade credit at the time of their most recent original appointment will be placed on the Active Duty List (ADL) in their current grade and will have an Active DOR (ADOR) that precedes the date of placement on the ADL by a period equal to the time served in an active status in their current grade.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant served in an enlisted status from 10 May 1976 to 10 February 1980.  He then served as a commissioned officer in a Regular Army capacity from 11 February 1980 until submitting an unqualified resignation on 9 May 1981. When he resigned from the Regular Army, he was transferred to the USAR.  He served in the USAR from 10 May 1981 to 28 November 1996 in multiple active and inactive statuses.  Between 29 November 1996 and 6 April 2006, he reverted to an enlisted status and served in the Army Reserve in multiple statuses.  Finally, after a short break in service, he transitioned to commissioned service in the USAR from 7 April 2006 until 5 July 2008.  

2.  He was recalled to active duty as part of the Call to Active Duty Program.  He entered active duty on 6 July 2008.  When he did so, his DOR should have been adjusted from his USAR status to Regular Army status based upon Army Regulation 600-8-29 which states OTRA commissioned officers in a grade above 2LT who were not given entry grade credit at the time of their most recent original appointment will be placed on the ADL in their current grade and will have an ADOR that precedes the date of placement on the ADL by a period equal to the time served in an active status in their current grade.  This clearly spells out that his ADOR would be from the date the applicant was placed on the ADL minus the time served in the Army Reserve capacity in that current grade.  

3.  The applicant was originally recommended for an SSB and awarded the DOR of 1 April 1994.  Following his entry on the ADL based upon the Call to Active Duty (CAD) Program, Active Duty Promotion Orders 310-004 were published on 5 November 2008 with an effective date of 1 April 1994.  

4.  Despite the absence of any historical records, based upon his breaks in military service and changes from commissioned service to enlisted service to commissioned service, it appears the applicant requested a DOR Determination Adjustment.  HRC adjusted his DOR to 11 April 2006 by amendment orders that were published on 3 June 2009.  It is reasonable to presume the applicant followed the additional instructions of his active duty orders, dated 25 June 2008, which stated he may be eligible for DOR re-computation and he must request a DOR determination through his servicing personnel office.   

5.  It further appears that HRC conducted another re-computation upon the applicant's request on 16 July 2013 and the actual DOR should have been adjusted to 27 December 2005 based upon the supporting APRC Form 249-E.  However, the DOR was not further adjusted because HRC was aware that the applicant had an ongoing ABCMR case and was awaiting guidance from this Board regarding potential further injustice and/or regarding being seen by earlier promotions boards to LTC that he is contesting as part of his request for relief.  

6.  A final re-computation of his DOR was conducted by HRC in November 2013 when the applicant's ARPC Form 249-E was corrected to separate the commissioned service from the enlisted service.  As a result, his DOR was adjusted to 27 July 2006.  This is the current DOR he now holds. 

7.  He was considered for promotion to LTC by the 2012 and 2013 boards but he was not selected for promotion.  The exact reasons he was not selected are unknown.  The decision to recommend an officer for promotion is based upon the criteria established by the Secretary of the Army and the collective judgment of the respective board members as to the relative merit of an officer's overall record when compared to the records of other officers being considered.  It can only be concluded that the previous promotion boards determined that his overall record, when compared with the records of his contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130011880



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